Institute for Security Studies (Tshwane/Pretoria)

13 June 2014

South Africa: Nkandla - the Tangled Web Where Parliamentary Procedure and Politics Meet

analysis

Nkandla never became the 'make or break' election issue that opposition parties were trying to turn it into, yet, even a month after the election, it continues to simmer just beneath the surface, causing a certain level of discomfort.

Earlier this year, Public Protector Thuli Madonsela provided a thorough report on the maladministration and 'unconscionable', 'unlawful' and 'excessive' expenditure of R246 million on upgrades at the president's homestead at Nkandla. Yet, Madonsela was unable to find that President Jacob Zuma had misled Parliament when he said he had a bond over the property.

For some reason, Zuma was not prepared to divulge the bond documents. That remains the biggest smoking gun in this matter. Surely the president is in a position to make short shrift of the report by at least showing that there was a bond over the property, and that he incurred personal liability?

Of course, if Zuma did not incur personal liability, it begs the question whether he has disclosed such an interest as a 'gift' in terms of the Executive Code of Ethics.

However, Zuma also told Parliament that he received contributions ('a benefit') from his 'family' for the renovations at Nkandla, which might technically also not have to be declared in terms of s6 (3) of the Code. We might never be able to get to the bottom of who the familial benefactors were, because even if the benefit had been a 'loan' as defined in the Code, it would be a liability and disclosed in the confidential section of the register.

Would Zuma really want Nkandla to undergo the scrutiny of a court case?

Many questions remain about this very costly project: the permission granted, the tenders gone wrong and, moreover, the missing architect - who seemed to be in total control of the project with the president's blessing.

Zuma denied close involvement, yet his personal architect - Minenhle Makhanya, whom he brought onto the project - was found to have wielded 'state power,' according to Madonsela.

Given that the Public Protector reports to Parliament, her report needs to be dealt with by Parliament. Yet, there seems to have been several delays and equivocation, first by the president himself in his initial response, and now by Baleka Mbete, the new Speaker of the National Assembly.

In the initial 14-day period granted by Madonsela, Zuma failed to provide Parliament with any sort of substantive response to the report's findings. Instead, an anodyne response was sent to former speaker Max Sisulu, which appeared to equate the Public Protector's report with that of an investigation into Nkandla by the Special Investigating Unit (SIU).

To equate the two is quite obviously erroneous, since the Public Protector is an institution that is constitutionally mandated to investigate maladministration. It therefore enjoys special protection, and its findings must be taken seriously by those in power. The president establishes the terms of reference of SIU investigations.

Given that the president himself was found to have breached the Executive Code of Ethics on this project, the SIU is likely to be constrained to only investigate officials with government departments, and not the political principles exercising influence over these officials. It is therefore disingenuous to equate the two investigative bodies when the Public Protector's report clearly has constitutional primacy.

Then the buffoonish security cluster, since replaced in a cabinet reshuffle, announced its intention to take the Public Protector's report on review. This seems to have been placed on the back burner with the new ministers seeming to think differently.

Would Zuma really want the Nkandla development to undergo the forensic scrutiny of a court case? Particularly when he allegedly flouted the law by not answering 18 of the 29 questions put to him by the Public Protector as part of her investigation? One might imagine not.

Anything less will result in this new Parliament being seen simply as a lackey of the executive set

This week, Zuma wrote to the new speaker advising that he was in receipt of the SIU report, and would furnish a report to Parliament within 30 days. Let's not hold our breath. Already, Mbete seems to be poised to disregard her constitutional duty in order to do a hatchet job for Zuma on this one.

Former speaker Max Sisulu presided over the formation of an ad hoc committee to report to the House on Madonsela's report. That was in the dying days of the last Parliament, and Sisulu has since paid the political price for being unwilling to compromise the integrity of his position as parliamentary speaker.

The ad hoc committee had decided that there was insufficient time to deal with the matter and that the committee should be revived by the fifth and current Parliament. The Democratic Alliance (DA) is busy trying to engage the speaker on this given that the previous committee's decisions are not binding on the new Parliament.

We seem to be in the realm of technical interpretation of the Rules of Parliament at this point. According to the Rules, an ad hoc committee can only be established for a specific task and by a 'resolution of the National Assembly' or 'during an adjournment of the Assembly for a period of more than 14 days, by the Speaker after consulting the Chief Whip and the most senior whip of each of the other parties.'

In an exchange of letters with the speaker, the DA argues that Parliament is technically adjourned now, as it has been more than 14 days since its last sitting on 21 May. 'Adjournment' is defined on Parliament's website in the glossary as, 'The closure of business of a sitting or session of the Houseor one of its committees.' It is hard to tell quite how binding this definitional glossary is, yet it provides some interpretative suggestion - albeit limited.

While the DA may well be technically right, there is a sense of an impending uphill battle between Mbete and the DA's James Selfe on this. Knowing that they do not have the numbers to push for a resolution, the DA will need to appeal to the speaker. Of course, the president will report to Parliament in 30 days, and then surely the speaker will need to deal with this matter - or indeed a House resolution will have to be passed.

The DA has provided the speaker with a further opportunity to revisit her decision not to set up an ad hoc committee and will possibly take legal action should she not do so. Of course, placing the matter in the courts could lead to it being drawn out, which might well be counter-productive in the end. Really, this is a matter for Parliament and not the courts.

Given that the Nkandla scandal reveals the collapse of ethical decision-making at the highest levels of government, it is of national importance, and Parliament should be seized of the matter.

The arms deal in 1999 and 2000 became a leitmotif for Parliament abdicating its responsibility to exercise oversight over the executive, when then speaker Frene Ginwala capitulated to pressure from the African National Congress (ANC) and actively tried to halt any investigation the Public Accounts Committee wished to conduct. It was a low point in our democratic Parliament's history, and the sorry Seriti Commission shows how much those in power still need the matter to be swept under the carpet.

This fifth democratic Parliament has the opportunity to do things differently, and Mbete has the chance to put aside her instincts as Chairperson of the ANC for a moment and allow Parliament to do its constitutional duty.

If the technicality of the definition of 'adjournment' becomes a stumbling block, members of Parliament should do the right thing and pass a resolution to continue the previous ad hoc committee's work.

Anything less will result in this new Parliament being seen simply as a lackey of the executive set, undermining a constitutionally mandated body to protect the personal interests of the president - to the detriment of our constitutional democracy and the country as a whole.

Judith February, Senior Researcher, Governance, Crime and Justice Division, ISS Pretoria

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